Summary: Mrs B complains about a school admission appeal panel, which she considers did not properly consider her case. The Ombudsman finds the notes taken at the hearing were not comprehensive, but on balance this does not call into question the panel’s decision and so it did not lead to injustice for Mrs B.

The complaint

1. The complainant, whom I shall call Mrs B, complains a school admissions appeal panel failed to take proper account of the points she raised at appeal for a middle school place for her child, C.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We cannot question whether a school admission appeal panel’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered all the information provided by Mrs B about her complaint. I made written enquiries of the Council and considered the comments and evidence it provided in response.
6. I took account of the relevant statutory guidance, which is the School Admissions Appeals Code, and the non-statutory guidance ‘Advice for clerks and appeal panels on school admission appeals’ issued by the Department for Education.
7. I wrote to Mrs B and the Council with my draft decision and gave them an opportunity to comment before making my final decision.

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What I found

Background – education admissions and appeals

8. Under the system of coordinated admissions, parents make a single application for a school place to their home local authority.
9. All schools must have a set of admission arrangements. These are used to decide which children will receive an offer of a place if there are more applications than places available. The school's admission authority sets the admission arrangements.
10. Any parent who has their application for a school place refused has the right to appeal the decision via an independent appeal panel ('the Panel'). A clerk supports the Panel.
11. The Department for Education has published the School Admission Appeals Code ('the Appeals Code') to provide statutory guidance on school admission appeals.
12. Parents can send information in support of their appeal and the Clerk to the Panel circulates it before the hearing, along with information from the admission authority. Parents can attend the hearing to present their case. A representative from the admission authority will normally attend the hearing.
13. Parents and the Panel can ask the admission authority's representative questions. The Panel will normally ask the parents questions.
14. The Appeals Code sets out a two-stage process for considering appeals. In the first stage, the Panel examines the decision to refuse admission, and considers whether the admission authority took the decision properly. It also must decide whether admitting extra children would "prejudice the provision of efficient education or the efficient use of resources" for those already at the school. If the Panel decides that admitting extra children would prejudice the school, then it must continue to the second stage of the appeal. In this stage, the Panel must balance the prejudice to the school against the appellant's case. It must decide whether the appellant's case outweighs the prejudice. This is often referred to as "the balancing stage".
15. Panels will only decide whether to allow an appeal after they have heard all appeals for a particular school. Following an appeal, the Clerk writes to the parents with the Panel's decision. The Appeals Code sets out what information this letter should include to ensure the parent understands how and why the decision was made.
16. Independent appeal panels must follow the law when considering an appeal. The panel must consider whether:

• the admission arrangements comply with the law;
• the admission arrangements were properly applied to the case.
• The panel must then consider whether admitting another child would prejudice the education of others.

17. If the panel finds there would be prejudice the panel must then consider each appellant’s individual arguments. If the panel decides the appellant’s case outweighs the prejudice to the school, it must uphold the appeal.
18. The Ombudsman does not question the merits of decisions properly taken. The panel is entitled to come to its own judgment about the evidence it hears.

Background to the appeal

19. Mrs B’s son C was due to transfer to middle school in September 2019. Mrs B expressed a first preference for School X, the closest to the family’s home address. She expressed a second preference for School Y. The Council offered a place at School Z. Mrs B appealed for a place at School X and the Council arranged an independent appeal panel hearing.

The appeal hearing

20. Mrs B set out several grounds for her appeal. In her initial written submission these included:

• Logistical difficulties getting C to the allocated school on time, since both parents work and there are siblings attending different schools who also needed to be accommodated. These difficulties would be avoided if C was able to attend School X;
• C would be able to benefit from after school sports activities at School X, while after school activities would not be possible for him at the allocated school;
• C plays guitar and School X has a guitar ensemble and a guitar teacher which would enable his musical ability to flourish;
• C is extremely sociable and meets up with friends after school. This would not be possible at the allocated school due to distance from home, and he would become isolated;
• C has a lazy eye and needs to be in a familiar setting, he knows the roads well around School X.

21. Mrs B submitted additional written information prior to the hearing, setting out further grounds to support the request for School X, including:

• A child who would be attending the allocated school had physically attacked and bullied C;
• C would not be able to attend wraparound provision before and after school because he needs to eat regular meals due to being underweight, and this would not be possible in wraparound;
• C would not have enough time for the completion of homework following a long commute to the allocated school, placing him at a disadvantage; and
• Family and friends would not be able to help with the logistics of getting C to the allocated school on time.

22. The Council, as admission authority, set out in its submission for the appeal that the school’s published admissions number was 150, and that 303 applications for places had been received comprising first, second and third preferences. The admissions policy sets out the criteria which will be applied when places are allocated. The highest priority is given to children with an Education Health and Care plan, followed by looked after or previously looked-after children, children in the catchment area with siblings in the school, then children in the catchment area from feeder schools, children in the area (not from feeder schools). Where a tiebreaker is needed within a category, this is based on the distance from home to school, with those closest being allocated first.
23. The last place allocated was to a child in area not from a feeder school, who lives 0.211 miles from the school. The closest in-area child refused a place lives 0.248 miles from the school. Mrs B’s child would fall into this category but lives 3.8 miles from the school. 33 on-time applications and nine late applications were refused places at the school in this admissions round.
24. The Council then set out information about the demands placed on the school in seeking to meet the needs of all its pupils including those with special educational needs or other vulnerabilities within the restrictions the available accommodation at the school. The Council’s case was that the admission of additional pupils would prejudice the provision of efficient education and the efficient use of resources.
25. The appeal clerk’s notes from the hearing show that after the Council set out its case the panel members and parents appealing for places were able to ask questions.
26. This was the first stage of the appeal, as described at paragraph 14. The panel was satisfied in this case that the admission arrangements complied with the law and had been properly applied to the case. It was also satisfied that admitting another child would prejudice the education of others. The panel then moved on to hear the individual appeals for places, including Mrs B’s appeal.
27. The clerk’s notes show that both Mrs B and her husband presented information to the panel, explaining in more detail the grounds for their appeal. At this second stage of the appeal, the balancing stage, the panel’s role was to balance the prejudice to the school against the appellant's case. The clerk’s notes for this stage record the following: “Some sympathies. Already bullied. Bully same school. [School Z] also has bullying. Physically small. Bullied anywhere. Asset to school. But choice to some extent”. Two of the three panel members voted not to uphold the appeal; the third voted to uphold. The notes say: “Dissenting – feel strongly re bullying”.
28. After the appeal the clerk wrote to Mrs B setting out the panel’s decision not to uphold her appeal. The letter explained the grounds on which the panel had been persuaded that to admit more children would prejudice the provision of efficient education or the efficient use of resources. The letter then listed the grounds Mrs B and her husband had put forward in ther appeal, including the issue of bullying, and set out the decson of the panel that it considered these did not amount to sufficiently strong special reasons which would override the arguments put forward by the Council. It also noted during the hearing, the presenting officer had given information that C would be eligible for free school transport if the nearest available school was beyond statutory walking distance, and if the rural road where the family lives is too dangerous to walk along this could also be assessed.

Mrs B’s dissatisfaction with the appeal hearing

29. Mrs B considers that the panel took irrelevant information into consideration in saying C could access school transport, because both parents work and nobody would be home when he was dropped off and they would not be able to access after-school clubs as they do currently. She said the admission authority had not provided any information about transport prior to the hearing and ‘dropped it on them’ and used that to ensure the panel disregarded concerns about getting the children to school. Mrs B also feels that one panel member was not impartial having been on the panel for appeals for the school for more than five years.

Analysis

30. In respect of Mrs B’s points of concern above, it was not wrong for the possible availability of home to school transport to be referred to during the hearing, given that concerns about the logistics of getting C to school were raised in her appeal submission. The clerk’s notes show that when this was mentioned in the hearing Mrs B’s husband was then able to respond to make the point about the restriction which would then be caused to after-school activities. So, the panel had that information. Regarding Mrs B’s concerns about the panel member having heard appeals for the school for five years, this is not contrary to the statutory or non-statutory guidance and is not fault. In any event, the evidence in this case shows that it was during the first stage of the hearing when a panel member referred to having heard appeals for this school for five years and they referred to this in the context of questioning the admission authority’s case for the school, noting that it had given the same reasons relating to accommodation issues year on year and questioning if there were plans for expansion. Such questioning was appropriate and was not detrimental to Mrs B’s case.
31. The clerk’s notes from the appeal hearing do not need to record all that is said but should clearly evidence the decision-making. The notes in this case are not as comprehensive as they should be. However, the key question is whether it is likely that any fault led to an injustice.
32. When considering complaints, we may make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. In this case, I have taken account of all of the available evidence in both the clerk’s notes and the decision letter, and have noted that not all the members agreed with each other which further indicates the decision-making process was not conducted as a simple tick-box exercise. On balance I am satisfied that while the clerk’s notes could have been better this does not call into question the panel's decision and therefore Mrs B was not caused an injustice by that.

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Final decision

33. I have completed my investigation on the basis set out above.

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Investigator's decision on behalf of the Ombudsman